Dems Delay Trump’s Judicial Nominees by Running Out the Clock

Led by Chuck Schumer, Senate minority requires 30 hours of 'debate' for each nominee, including those with near-unanimous support

President Donald Trump has nominated 84 people for federal judgeships. Yet despite Republicans’ enjoying total control of the federal government, the judiciary has more vacancies than when the president took office.

Trump inherited 112 vacancies when he took the oath of office in January 2017. That has grown to 148, a 32 percent increase, according to the Administrative Office of the U.S. Courts.

The reason for the growing backlog has less to do with the pace of Trump’s nominations, which has been steady, than with obstruction techniques by Democrats. Despite having a minority in the Senate and less favorable rules than Senate minorities have had in the past, legal experts said Senate Minority Leader Chuck Schumer (D-N.Y.) has used every tool at his disposal to gum up the works.

The result is that the Senate has confirmed just 26 of Trump’s 84 nominees, including Supreme Court Justice Neil Gorsuch. With 30 more judges having announced plans to step down from full-time service, the number of vacancies is all but certain to grow.

Trump's allies express exasperation over the situation and what it means for the rest of his presidency.

"Trump would leave office with more vacancies than he started with," said Carrie Severino, chief counsel and policy director at the Judicial Crisis Network.

The Senate on Thursday made a tiny dent in the empty judgeships — which now stand at about 17 percent of the federal bench — by confirming A. Marvin Quattlebaum Jr. to serve as a District Court judge in South Carolina over the objections of 28 Democratic senators. Schumer explained his "no" vote as a protest against a lack of diversity in the judiciary.

Quattlebaum, who is white, replaced a black nominee whom Barack Obama had selected for the post before leaving office.

"The nomination of Marvin Quattlebaum speaks to the overall lack of diversity in President Trump's selections for the federal judiciary," Schumer said. "Quattlebaum replaces not one, but two scuttled Obama nominees who were African-American."

"This is political correctness run amok," he said in a statement. "Voting against a highly qualified nominee because of the color of his skin does nothing to bring our country and nation together. Frankly, it is a massive step backward."

While Quattlebaum drew sizable opposition, however, other judicial nominees have been subjected to delaying tactics despite near-unanimous support. In the past, a minority of senators could block a nomination by staging a filibuster, but former Senate Democratic Leader Harry Reid took that option off the table by changing Senate rules to prohibit filibusters for district and appellate nominees.

"What we are seeing is just running the clock on this … It gums up the works for the executive branch nominees as well."

Without that tool, Democrats have engaged in a systematic slow-roll of all judicial nominees, demanding 30 hours of debate before a vote can be taken.

Severino, whose organization promotes conservative nominees to the bench, said it mostly is a sham because senators rarely ever even debate the merits of the nominees. Instead, they give speeches about other matters while they burn 30 hours of valuable time.

"This is unheard of. This used to be required for someone who is controversial," she said. "What we are seeing is just running the clock on this … It gums up the works for the executive branch nominees as well."

Consider the 10 most recent district judges to be confirmed before Quattlebaum. None received more than 16 "no" votes, and seven got two or fewer dissenting votes. Five of them, in fact, had been Obama nominees that Trump renominated.

Nonetheless, Democrats forced the Senate to spend 30 hours on each one.

"It can't actually stop the majority of the Senate from confirming the judges they want to," said Elizabeth Slattery, a legal fellow at The Heritage Foundation's Meese Center for Legal and Judicial Studies. "It just takes up time and slows [the process] down."

Liberal base "wants resistance." Slattery said Democrats may intend to run out the clock on 2018 — and hope the midterm elections put them in a position to outright kill future nominations they dislike. It also sends a signal to hardcore liberal activists, she added.

"They have a base they need to please, and the base wants resistance," she said.

But Rachel Bovard, former policy director for the conservative Senate Steering Committee and an expert on Senate procedure, said Democrats do not deserve all of the blame.

"They value their long weekends at home much more than they do delaying these judges," Severino said.

"Republicans are letting them do it, basically," she told LifeZette. "Republicans could make it painful for them each time they do it."

Bovard, currently senior policy director at the Conservative Partnership Institute, said Republicans could compel Democrats to carry out a real 30 hours of debate rather than just delay the vote on each nominee.

"They would be forcing Democrats to talk," she said.

In 2013, a bipartisan group of senators worked out a deal to limit debate on presidential nominees. Experts said senators could strike a similar deal or adopt a proposal by Sen. James Lankford (R-Okla.) to formalize it in the Senate rules. Under his proposal, debate would be cut off after two hours for district court nominees, eight hours for most executive branch nominees and 30 hours for appellate court and Cabinet nominees.

Or Senate Majority Leader Mitch McConnell (R-Ky.) could simply call his Democratic colleagues' bluff — and force them remain in the chamber late at night and on weekends to consume the 30 hours of debate.

McConnell threatened this one week for a batch of nominees, and Democrats quickly folded.

"They value their long weekends at home much more than they do delaying these judges," Severino said.

Bovard said she does not know why McConnell does not employ the same hardball tactic with all nominees.

"Democrats are going to continue to do this if they can get away with it without consequences," she said.